(1) Leave to appeal against sentences granted; (2) Appeal allowed, sentences quashed; (3) In lieu thereof, the applicant be sentenced as follows: (i) On the charge of giving false and misleading evidence to an ICAC hearing: imprisonment for a fixed term of 6 months, commencing on 26 March 2010 and expiring on 25 September 2010; (ii) On the first charge of doing an act with intent to pervert the course of justice: imprisonment for a fixed term of 10 months, commencing on 26 April 2010 and expiring on 25 February 2011; (iii) On the second charge of doing an act with intent to pervert the course of justice and taking into account the four offences on the Form 1: imprisonment for 22 months, commencing on 26 May 2010, with a non-parole period of 12 months, which will expire on 25 May 2011; the head sentence to expire on 25 March 2012. (4) Pursuant to s 50 of the Sentencing Procedure Act, I would direct that the applicant be released at the expiration of the non-parole period, on 25 May 2011.
Catchwords:
CRIMINAL LAW - appeal against sentence - plea of guilty - no manifest inadequacy in individual sentences - error in failing to consider delay in prosecution - finding of special circumstances not reflected in aggregate sentence imposed - consideration of sentences imposed on co-offenders - leave granted - appeal allowed - applicant re-sentenced CRIMINAL LAW - particular offences - offences relating to the administration of justice - two counts perverting the course of justice - giving false and misleading evidence to ICAC - Form 1 offences - applicant a priest and supervisor of community service orders - falsification of records CRIMINAL LAW - sentence - approach to sentencing process - assessment of objective gravity - two-step process mandated for standard non-parole period offences - erroneous use of language hypothesising notional "mid-range" offence where standard non-parole period does not apply - no error in ultimate assessment of objective gravity CRIMINAL LAW - appeal - fresh evidence - application of s 6(3) Criminal Appeal Act 1912 - admission of additional evidence in applications for leave to appeal against sentence - medical reports - evidence could have been obtained - inadequacy of legal advice - evidence admitted CRIMINAL LAW - sentence - purpose of sentence - non-custodial orders - community service orders
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Khoury v R [2011] NSWCCA 118
Case
[2011] NSWCCA 118
Decision Date
CaseChat Overview and Summary
The appeal in Khoury v R involves the respondent, who pled guilty to multiple charges of perverting the course of justice, including providing false and misleading evidence to the Independent Commission Against Corruption (ICAC). The respondent, a priest and supervisor of community service orders, falsified records. The appeal centred on the sentencing process and the imposition of penalties by the lower court. The primary legal issues were whether the sentences imposed were manifestly inadequate and if there were errors in the sentencing process, such as failing to consider the delay in prosecution and the presence of special circumstances.
The court found that while there was no manifest inadequacy in the individual sentences, there was an error in the sentencing process. The lower court had not adequately considered the delay in prosecution and had failed to reflect special circumstances in the aggregate sentence. The court also highlighted the erroneous use of language suggesting a notional "mid-range" offence, which did not apply given the standard non-parole period offences involved. Despite this, the court confirmed that the ultimate assessment of objective gravity was not erroneous. The court allowed the appeal, re-sentencing the respondent, and noted the importance of considering the sentences imposed on co-offenders.
In its reasoning, the court emphasised the need for a rigorous approach to sentencing, particularly in relation to offences that undermine the administration of justice. The court underscored that the purpose of sentencing includes deterrence and rehabilitation, which were not sufficiently considered in the original sentencing. The admission of fresh evidence, such as medical reports, was also examined under the provisions of section 6(3) of the Criminal Appeal Act 1912. The court held that the evidence, which could have been obtained earlier, was admissible given the inadequacy of legal advice provided to the respondent during the original proceedings. Finally, the court addressed the appropriateness of non-custodial orders, such as community service orders, in the context of the respondent's professional role and the gravity of the offences.